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What's the Frequency, Kevin?

Former FCC counsel Kevin Werbach sounds a bit like EFF board member Larry Lessig in his recent speech at Wireless Future/SXSW--and it's not just because he's talking about building a (wireless) "supercommons." It appears that both are forced to navigate slowly over the speedbump of binary thinking before tackling the subject at hand. "[Unlike] communism," writes Werbach (PDF), "the commons position is neither anti-property nor anti-markets."

"Here's the idea: There is no thing out there called spectrum. What government regulates is not that thing, but devices. They tell companies what they can build, and they tell people what they can do. The problem is that any set of regulation that determines how devices can act is inefficient. You can always come up with a new technology to allow for more capacity. If there's no way to come up with a set of rules that's efficient, let's have no rules.

Let's have a universal transmission privilege. Anyone can transmit anything, anytime, in any way. This is not anarchy. This is the supercommons. It can exist alongside the existing regime. Let's allow communication to exist that uses free, unexploited capacity. We can also come up with a set of rules to resolve disputes. We're only using a tiny sliver of what's out there. We could use tort law, which considers the duty of care, which could be applied to wireless communication."

Or, as the Chicago Tribune puts (reg. req.) it, Werbach proposes that we "replace the current FCC structure with a system under which broadcasters who suffer damage from signal interference could sue those who harmed them."

"Look at highways," Werbach told the Tribune. "If the government controlled all access to highways and gave GM a license to put only its cars on the road, we'd think that was kind of crazy. But the same arguments are behind why we have that kind of control over wireless.

"Giving every device intelligence changes things, just like cars on the road. When someone starts to change into your lane, you don't just sit, you get out of the way. Smart radios can operate the same way."

For more detailed information, check out Werbach's Radio Revolution (PDF) and/or his shorter version for The Feature, here. Finally, see this motherlode of basic resources, collected by the good people @ Stanford's Center for Internet and Society.